Why do corporate parties, at least in Nevada, reflexively disclose a Rule 30(b)(6) witness in their initial, affirmative disclosures to testify “on the facts and circumstances of this case?” I was even doing this, without much thought, until recently. This designation does not seem to meet the rules in that it does not identify the topics upon which the designee will actually testify. Further, it arguably alleviates an opposing party’s obligation to reasonably identify the topics upon which they want to depose a 30(b)(6) representative later on. Instead, they could theoretically just send a deposition notice for the 30(b)(6) designee listed in the corporate party’s disclosures. One intrepid opposing counsel did that to one of my clients, which prompted me to withdraw the designation. It also prompted this post.
There seems like a better practice exists. Once the corporate defendant decides if it needs such a witness, just disclose them by name as a typical witness who will testify on delineated topics. This then enables appropriate trial subpoenas, as discussed in another post. This disclosure may not, however, be possible until later in the discovery process until the actual issues in the case are sufficiently identified.